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Where the sale is made under a decree in chancery, the power of the court to enforce the contract of purchase is broader than in case of an ordinary execution sale. In addition to an action at law to recover the amount bid, or the deficiency upon a resale, 1 the court of chancery may, upon motion, or proper application, (1) set aside the sale, release the purchaser, and decree a resale ; or (2) ratify the sale and decree a specific performance of the contract, enforcing its order by attachment and commitment of the person of the purchaser for contempt; or (3) order a resale, holding the purchaser liable for any deficiency, and for the costs of the resale." 2

may be

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Judgment for the deficiency may be ratified, a rule may be taken against obtained upon motion, under the ilis- the purchaser to show cause why he souri statute. Phillips v. Goldman, 75 has not paid his bid and completed his Mo. 686; Gray v. Case, 51 Mo. 463. contract. Anderson v. Foulke, 2 Har. See also in Indiana, Williams z'. Lines, & G. (Md.) 346;_ Harding v. Yar7 Blackf. (Ind.) 46.

borough, 6 Jones Eq. (N. Car.) 215; 1. These remedies exist, notwith Hill v. Hill, 58 Ill.

Hill v. Hill, 58 Ill. 239; Vance v. Fosstanding the more summary remedies ter, 9 Bush (Ky.) 389. Upon his fail. to which resort may also be had in ure to show cause, the court will order courts of equity. Townshend v. Simon, him to pay the purchase money and 38 N. J. L. 239. So an action at law may enforce this order by attachment.

maintained upon notes or Brasher 7. Cortlandt, 2 Johns. Ch. bonds given by the purchaser. Farmers' (N. Y.) 505; Lansdown v. Elderton, 14 etc. Bank v. Martin, 7 Md. 342; s. C., Ves. 512, and authorities last above 61 Am. Dec. 350, 352; Riddle 7'. Hill, cited. In some jurisdictions this order 51 Ala. 224.

may be obtained upon motion merely. But a defaulting purchaser at sheriff's Ogilvie i'. Richardson, 14 Wis. 157; sale i's not liable to respond in damages Cazet z'. Hubbell, 36 N. Y. 677. And for loss on resale of the property if it execution has been issued against the appears that under the first sale he property of the purchaser in some cases. would have acquired a more valuable Blackmore v. Barker, 2 Swan. (Tenn.) title than that which passed to the pur- 340; Atkinson v. Richardson, 18 Wis. chaser at the last sale, or that the terms 244. of the first sale were more advantageous The practice is similar where an to the purchaser than those of the re- order for resale is sought.

Matter of sale. Hare v. Bedell, 98 Pa. St. 485. Yates, 6 Jones Eq. (N. Car.) 212, 306; And in Tennessee, where a sheriff, un- Williams?'. Blakey, 76 Va.

.

257; der an execution, sells land and it is bid Schaefer 7'. O'Brien, 49 Md. 253. The

, in by a purchaser who fails to pay the order should direct the resale of the money, and he again sells at a less sum property at the risk and expense of the to another purchaser, the first pur- defaulting bidder. Hill v. Hill, 58 Ill. chaser cannot be held liable by the 239. judgment creditor for the difference in In North Carolina, the title is con the first and last bid. Ilarvey v.

sidered in custodia legis until payment Adams, 9 Lea (Tenn.) 289.

of the purchase money. Fleming z'. 2. Abridged from 2 Jones on Mort- Roberts, 84 N. Car. 532. See also as gages, § 1642, by Mr. Freeman in a to retention of title in Virginia and note to Mount v. Brown, 33 Miss. 566; West Virginia, Glenn 2. Blackford, S. C., 69 Am. Dec. 369. See also Clark- 23 W. Va. 182; Long 7. Weller, 209 son v. Read, 15 Gratt. (Va.) 288; Good- Gratt. (Va.) 347win v. Simonson, 74 N. Y. 133; Milten- In Tennessee, judgment may

be berger v. Hill, 17 La. An. 52; Shaefer taken and a resale ordered upon motion v. O'Brien, 49 Md. 253; Murdock's and without notice to the purchaser. Case, 2 Bland (Md.) 461; S. C., 20 Am. Munson 7'. Payne, 9 Heisk. (Tenn.) 672; Dec. 381; Stimson v. Mead, 2 R. I. Mosby v. Hunt, 9 Heisk. (Tenn.) 675. 541.

A purchaser who remains in posses. Mode of Procedure Generally.--After sion after a sale is set aside and the the bid has been accepted and the sale deed vacated is a mere trespasser.

V. SETTING ASIDE AND RESALE.— Where justice requires it, and

, the rights of third persons have not so intervened as to prevent it, the court issuing the process or order of sale may vacate or set aside the sale for good cause shown. Indeed, it is said to be “the duty of all courts, when satisfied that sales made under their process are affected with fraud, irregularity or error, wilful disregard of the statutory regulations by the officer, whereby the rights of either of the parties interested are seriously affected, to set aside such sale upon a proper showing to the court under whose process the sale was made, and order a resale of the

propAmong the causes for which sales have most often been set aside are fraud, accident and mistake.2 Mere inadequacy of

1

erty.” 1

Green v. Jordan, S3 Ala. 220; s. C., 3 When Sale Will Be Set Aside.-In a Am. St. Rep. 711.

recent Near Jersey case, where the See further

as, to

liabilities of complaint in the original cause prompurchaser and mode of enforcing ised to notify the petitioner, who was bids, Woods V. Ellis (Va.), 7 S. interested in the property, of the time

S. E. Rep. 852; Townshend 7. Simon, and place of sale, and forgot so to do, 38 N. J. L. 239, Shinn v. Roberts, in consequence whereof the petitioner 20 N. J. L. 435; s. C., 43 Am. Dec. did not attend, and the property was 636; Galpin v. Lamb, 29 Ohio St. 529; sacrificed, such sale was set aside. Pell Cobb v. Wood, 8 Cush. (Mass.) 228; 7'. Vreeland, 35 N. J. Eq. 22. So, in a Deaderick v. Watkins, 8 Humph. late Texas case, it was held that a (Tenn.) 520; Still v. Boon, 5 Sneed judgment creditor who, by reason of (Tenn.) 380; Williams z. Blakey, 76 the unusual hour at which an execution Va. 254; Mosby v. Withers, So Va. 82; sale is made and the inclemency of the Fleming v. Roberts, 84 N. Car. 532; weather, is prevented, without laches on Clarkson v. Read, 15 Gratt. (Va.) 288; his part, from being present to protect Cooper v. Borrall, 10 Pa. St. 491; Shar. his interest as a bidder against an inman v. Walker, 68 Ga. 148.

solvent judgment debtor, whereby, and 1. Herman on Executions 406, § because of few bidders being present, 249. This statement of the rule serves the property sold for less than its value to indicate generally the power, if not and less than the judgment, is entitled the duty, of the courts, and is sup- in equity to have the sale set aside. ported in its general scope by the au- Johnson v. Crawl, 55 Tex. 571. And thorities cited by Mr. Herman. See see for a like ruling under a very simialso Freeman on Executions (2nd ed.), lar state of facts, Weir v: Travellers' Ins. 0 308; Jarboe v. Colvin, 4 Bush (Ky.) Co., 32 Kan. 325. 70; King v. Platt, 37 N. Y. 155; Where, on enquiry at the office of the Rhonemus v. Corwin, 9 Ohio St. 366; sheriff by the attorney of a defendant in Hopton v. Swan, 50 Miss. 545; Hilleary an execution, he is informed by a t'. Thompson, 11 W. Va. 113; Fis v. deputy in charge of the office that the Loranger, 50 Mich. 199; Kauffman v. sale of the property levied on, consistWalker, 9 Md. 240; Hudson v. Morriss, ing of three hundred and thirty-three 55 Tex. 595; Fleming ?". Maddox, 30 shares of stock in a corporation, will Iowa 239; Ewald z. Coleman, 19 Ind. take place at twelve o'clock on the day 66; and authorities hereinafter cited. of sale, and subsequently the sale is

2. See Seaman 7. Riggins, i Green's made in mass at ten o'clock, in the abCh. (N. J.) 214; s. C., 34 Am. Dec. 200, sence of the defendant or his attorney, with note; Aldrick v. Wilcox, 10 R. I. and without their knowledge, and at a 405, 414; Wetzler v. Schaumann, 9 C. great sacrifice of the value of the propE. Green (N. J.) 64; Campbell v. erty, such sale will be set aside, on Gardner, 3 Stockt. Ch. (N. J.) 423; s. timely application, on motion of dec., 69 Am. Dec. 598; Littell 0. Zuntz, fendant. Am. Wine Co. v. Scholer, 2 Ala. 256; s. c., 36 Am. Dec. 415; 85 Mo. 496. Hoppock 7'. Conklin, 4 Sand. Ch. (N. When a purchaser of land at sheriff's Y.) 382; Cumming's Appeal, 23 Pa. St. sale induces others not to bid and thus 509; Allen v'. Clark, 36 Wis. 101. procures the land for less than it is

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worth, the sale will be set aside, and of two lots and occupied by two this will be done though the action is not dwelling houses, was sold as one parcel, instituted until after the year of re- it being determined that in fact the demption has expired. Lynch z'. Reese, property consisted of but one tract or

, 97 Ind. 360.

parcel of land. Coolbaugh r'. Roemer, Where two separate lots, of the value 32 Minn. 445. of $8,000, are sold on execution for $65, Where a judgment is rendered and en masse, without first offering them an execution issued against Rosina separately, a court of equity will inter- Coons, it is not sufficient reason for pose, if invoked in a reasonable time, setting aside a sale of real estate made and set the sale aside. Berry 7'. Lovi, on such execution that the right name 107 III. 612.

of the defendant is shown to be Rosina İn Hughes ?'. Duncan, 60 Tex. 72, Kuhn. Kuhn v. Kilmer, 16 Neb. 699. where, without the knowledge of the Defects in the advertisement of the judgment creditor, in whose favor a sale by the sheriff, and in the notice judgment had been rendered, ordering given to the defendant in execution, are the sale of specific land, to which a lien mere irregularities, and do not furnish attached, execution issued under which good grounds for setting aside the sale the land sold for one-fortieth of its real without proof of consequent injury to value, the sale was set aside on proceed- the party complaining. Holly 2'. Bass, ings instituted by injunction after the 68 Ala. 206. sale and before the payment of the sum Mere irregularity in making a judicial bid, it being shown that the sale was sale, when taken in connection with made in violation of an agreement be- gross inadequacy of consideration, will tween the debtor and creditor for in- not alone, as matter of law, be held a dulgence and both uniting in proceed. sufficient ground for vacating such sale, ings to set it aside.

in the absence of facts showing that the At an execution sale the defendant's irregularity conduced to the inadequacy property was bid off by the plaintiff at of the sum bid. Allen z. Pierson, 60 an inconsiderable sum, in pursuance of Tex. 604. an alleged fraudulent arrangement to In Alabama, the following distinction suppress competition among bidders. has been drawn: "When a sale of lands Feld, in an action to impeach the title under execution at law is impeached, beacquired by plaintiff, that the sale cause of mere error in the process, or should be set aside and the parties on account of some error attending its placed in statu quo, without prejudice execution, the court from which the to the plaintiff's remedies from lapse of process issued has exclusive jurisdiction time since the sale. Currie z'. Clark, 90 to set aside the sale; but, if fraud or il

legality attends the sale, or it has been In a foreign attachment suit, under followed by the execution of a conveythe provisions of chapter 151 of the ance casting a cloud upon the title, a code of Virginia, where the defendant court of equity has jurisdiction conhas not appeared or been served with a current with the court of law to set it copy of the attachment as provided in aside. If the judgment was in fact satsection 24, the giving of the bond re- isfied at the time of the sale under exquired by said section is a condition ecution, the court from which the proprecedent to the sale of the attached cess issued has undoubted jurisdiction property under section 23 of said chap- to set aside the sale; but, if the process ter. And where a sale is made with- is regular on its face, and the sale is out such bond having bcen given and followed by a regular conveyance to the confirmed, the decree confirming such plaintiff in execution

execution as the pursale will be reversed and the sale set chaser, the fact of payment resting in aside, and the purchaser at such sale is parol, a court of equity will intervene, not entitled to the protection of the at the instance of the defendant in 27th section of said chapter. Hall 7'.

Hall 7' possession, set aside the sale, and canLowther, 22 W. Va. 570.

cel the conveyance as a cloud on the When Sale Will Not Be Set Aside.-An title.” Cowen v. Sapp, 74 Ala. 44. execution sale of real property will not See also upon this subject generally be set aside merely because sold for Herman on Executions 408, Ø 250; 34 much less than its real value, there re- Am. Dec. 204, note;

Rights OF maining a right of redemption after the PURCHASER, supra, this title. sale. Nor will it be set aside because In Pennsylvania, after a sheriff's sale the tract sold, being composed of parts has been confirmed, the purchase money

N. Car. 355.

price, however, is not of itself sufficient cause, in an ordinary case, for setting aside the sale.1 But gross inadequacy of price paid, the deed acknowledged, recorded the judgment and much less than and delivered to the purchaser, and the value of the property; afterward possession of the premises taken by the plaintiff moved the court to have him, the court has no power, upon a

the sale confirmed; and the defendant rule to show cause, to set aside the sale then tendered the amount of the judgand compel the purchaser to deliver up ment and moved the court that the sale the deed to be cancelled. Evans v. be set aside; and the plaintiff and purVI aury, 112 Pa. St. 300.

See also chaser then jointly moved the court to Cooper v. Wilson, 96 Pa. St. 409. permit the purchaser to increase his bid

So in Illinois, after the deed for real up to the amount of the judgment, and estate sold under execution has been to permit that amount to be credited on made, the court has no power, on mo- the judgment; at that time the land betion, to set aside the deed or set aside ing worth nearly twice the amount of the sale. It must be impeached, if at the judgment. Held, that the motions all, in equity, unless there was no judg- of the plaintiff and purchaser should be ment or execution, or the court had no sustained, and the motion of the dejurisdiction to render the judginent. fendant should be overruled; that neither

; Section 65 of the Practice act has no the manner of service of summons, nor application to motions to set aside ju- the want of the defendant's actual dicial sales, but refers to writs of execu- knowledge of the rendition of the judytion, replevin bonds and the like. Jen- ment, nor the fact that the purchaser kins v. Merriweather, 109 Ill. 647. was not an entire stranger to all the

In Kansas, a sheriff's sale of real es- proceedings in the case, nor the fact tate was set aside by the court, on mo- that the property was sold for much tion of one of the parties, upon facts less than its value, nor the fact that the ascertained and proved by evidence property at the time of the confirmaother than the papers and proceedings tion of the sale was worth much more already of record in the case, and with- than the amount of the judgment, nor out notice to and in the absence of one all together, will authorize the sale to of the parties interested in the sale. be set aside. McGeorge 7'. Sease, 32 Held, that the order of the court, setting Kan. 387. aside the sale without notice,

In Indiana, a sale of land under an erroneous under such circumstances. alias writ will not be set aside as void Baker w. Hall, 29 Kan. 442.

merely because the writ was improviAnother interesting case was recently dently issued by the clerk without the decided by the supreme court of Kan- plaintiff's order. And in general one sus. A judgment was rendered against claiming in the character of a judgthe defendant on a promissory note and ment creditor cannot avail himself of a real estate mortgage, in his absence mere irregularities to set aside a conand without his knowledge, in pursu- summated sale. Johnson v. Murray, 112 ance of a service of summons made by Ind. 154; S.C., 2 Am. St. Rep. 174. the sheriff, who left a duly certified copy The doctrine of estoppel will often thereof with his wife at his usual place prevent a party froin having a sale set of residence; the property was ordered aside where he has acquiesced therein. to be sold; at the time when the judg- delayed too long or received the benefits ment was rendered the land was worth thereof. See Critchlow v. Critchlow but little more than the judgment; af- (Pa.), 11 Atl. Rep. 235; Presstman i'. terward the defendant returned home Mason (Md.), 11 Atl. Rep. 764; Walet and had notice of the judgment; an 7'. Haskins, 68 Téx. 418; s. c., 2 Am. St. order of sale was then issued; the de- Rep. 501. See also EQUITY; ESTOPPEL. fendant did not pay or

tender the 1. Graffam v'. Burgess, 117 U. S. 180; amount of the judgment or any part Brittin v. Handy, 20 Ark. 381; s. C., 73 thereof, and did not attend the sale or Am. Dec. 497; Parker v. Glenn, 72 Ga. attempt to make the property sell for 637; Weaver v. Lyon (Pa.), 5 Atl. Rep. what it was worth, and the property 782; Coolbaugh v. Roemer, 32 Minn. was sold to a person not an entire 445; Beckwith z'. Kings Mt. etc. Co., 87 stranger to all the proceedings in the N. Car. 155; Hunt z'. Fisher, 29 Fed. case, but not a party to the suit and hav- Rep. Soi and note; Littell u. Zuntz, 2 ing no interest in the judgment, for a Ala. 256; s. C., 36 Am. Dec. 415. sum much less than the amount of Thus a sheriff's sale on execution of

was

has in many cases been treated as a badge of fraud, and, when

1 coupled with other suspicious circumstances, may be sufficient cause for setting aside the sale.2

Any party in interest, usually the plaintiff, the defendant or the purchaser, may have the sale vacated for good cause when he has been prejudiced thereby. But a stranger in interest who is not injuriously affected by the sale cannot have it vacated.4 Nor real estate of the alleged value of $6,400, knowledge of the day of sale, and the subject to a mortgage of $4,000, for the attorneys of the creditor testify they sum of $5, will not be set aside merely had no notice thereof, and the attorneys on the ground of inadequacy of price. are not present at the sale, and the real Kerr v. Haverstick, 94 Ind. 178. So estate is bid in by one of the judgment held where $165 was bid for property debtors under the direction of his wife, worth $600. Sowles v. Harvey, 20 Ind. for and in her name, at a grossly inade217; s. c., 83 Am. Dec. 315. And see quate price, the district court is justified especially O'Callaghan v. O’Callaghan, in setting the sale aside. Weir 7. 91 Ill. 228.

But compare In re Palmer, Travelers' Ins. Co., 32 Kan. 325. 13 Fed. Rep. 870; Blackburn v. Selma Great inadequacy of price at a juR. Co., 3 Fed. Rep. 689.

dicial sale of real estate requires only Affidavits which state simply that the slight circumstances of unfairness in the lands "sold for greatly less than their conduct of the party benefited by the value," not stating the value and price, sale to raise a presumption of fraud. or other facts from which these can be And if the inadequacy of price at a sale ascertained, being merely the statement on an execution be so gross as to shock of opinions, are not sufficient to set the conscience, or if in addition to gross aside the sale. Holly v. Bass, 68 Ala. inadequacy the purchaser has been 206.

guilty of unfairness or has taken any 1. See Fisher v. Shelver, 53 Wis. undue advantage, or if the owner of the 498; Ames v Gilmore, 59 Mo. 537; Ful- property or the party interested in it ler v. Brewster, 53 Md. 358, 361; Ap- has been for any other reason misled person v. Burgett, 33 Ark. 338; Stevens or surprised, then the sale will be re7. Dillman, 86 111. 233; Loring v. Dun- garded as fraudulent and void, and the ning, 16 Fla. 119.

party injured will be permitted to re2. Kloepping v. Stellmacher, 21 N. deem the property sold. Graffam v. J. Eq. 328; Fletcher z'. McGill

, 110 Burgess, 117 U. S. 180. Ind. 395; Wright v. Dick (Ind.), 19 N. Where real estate is sold at sheriff's E. Rep. 306; Cubbage v. Franklin, 62 sale, a few minutes prior to the time at Mo. 364; Morris v. Roley, 73 Ill. 462; which the sale was advertised to take Pearson ?). Hudson, 52 Tex. 352; Fitz- place, and at a grossly inadequate price, gerald v. Kelso (Iowa), 29 N. W. Rep. the sale may be set aside on motion of 943; Bean v. Hoffendorfer (Ky.), 2 S. the defendant. Pickett v. Pickett, 31 W. Rep. 556; Weir 7. Travelers' Ins. Kan. 727. Co., 32 Kan. 325; Lee r'. Davis, 16 Ala.

v

See also, for a collection of many 516; Beckwith v. Kings etc. Co., 87 N. other authorities upon this subject,

DEBTS OF DE 'EDENTS, vol. 5, p. 301; Inadequacy of price is not sufficient Subtit. Restra ring and Setting Aside. per se to set aside a sale, unless it is so 3. Freeman on Executions, $ 305; gross as, when combined with other Galbreath v. ]Drought, 29 Kan. 711; circumstances, to amount to fraud; but Cravens v. Wilson, 48 Tex. 324; U. S. if it be great, it is of itself a strong cir- v. Vestel, 12 Fed. Rep. 59. cumstance to evidence fraud; and this Thus holders of subordinate liens or is true where it is attended by any those to whom property is transferred other fact showing the transaction to subject to the lien of the execution may, be unfair or unjust or against good con- in proper cases, have the sale vacated. science." Parker ?'. Glenn, 72 Ga. Harrison v. Andrews, 18 Kan. 535; z

, 637

Cravens v. Wilson, 48 Tex. 324. ComWhere an order of sale is issued pare Frink v. Morrison, 13 Abb. Pr. without the authority or knowledge of (N. Y.) 80. the judgment creditor or any of his 4. Gilmer, Matter of, 21 La. An. 589, attorneys, and the creditor has no and Louisiana cases there cited; Laird

Car. 155

66

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